The Dangers of Hobnobbing with Supreme Court Justices; They Might Have to Recuse Themselves in Your Cert Petition

by Julian Ku

I’ve been following Argentina’s travails in the U.S. courts with great interest, even penning an oped on the subject back in January on their standoff with sovereign debt creditors in Ghana. Argentina and the so-called “holdout” creditors have been battling out their dispute in the federal courts of New York for years. So it is interesting to note that Argentina is finally facing its last stand. As Washington Legal Foundation’s Rich Samp notes in his oped, Argentina is highly unlikely to win its last-ditch cert petition to block a lower court order in favor of the holdout creditors. I agree for all the reasons he lists (e,g. no federal law issues, no circuit split, etc) that the Court will not review the case, but I was particularly struck by his observation that Justice Sonya Sotomayor will almost certainly have to recuse herself from the petition. First of all, as a court of appeals judge, she heard several Argentina-debt-related cases. And second of all, she appears to have a personal acquaintance with Argentina President Cristina Kirchner.

Separately, Justice Sotomayor may also decide to recuse herself because over the years she has met on a number of occasions with Argentina’s president, Cristina Fernández de Kirchner, and other high-ranking Argentine officials. Indeed, the Argentine government seems to have made a concerted effort to forge close relations with the Justice. It would be ironic if those efforts resulted in a decision by Justice Sotomayor to disqualify herself from hearing Argentina’s certiorari petitions.

Justice Sotomayor made an official visit to Argentina on August 27-29, 2012. According to U.S. State Department press releases, while in the country she met one-on-one with President Kirchner. The two also had a meeting when Kirchner was in Washington, D.C. in April 2010. Kirchner has taken an extremely active role in the Second Circuit litigation and has repeatedly and publicly denounced the “hold-outs” who are suing Argentina for payment on their bonds. This may provide Justice Sotomayor with an additional reason to disqualify herself from considering Argentina’s certiorari petitions.

As Rich notes, she doesn’t have to recuse herself and doesn’t have to give reasons when she does. But I think this is a plausible (additional) reason for her to avoid sitting on this case. In fact, given that the visit was so recent (just over one year ago), and that the litigation was already plainly heading for the Supreme Court even then, it is hard not to spot the problem here.

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